Citation Nr: 0947132
Decision Date: 12/11/09 Archive Date: 12/24/09
DOCKET NO. 08-25 816 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an initial compensable evaluation for
bilateral hearing loss.
2. Entitlement to an effective date earlier than December
14, 2006, for the grant of service connection for bilateral
hearing loss.
3. Entitlement to an effective date earlier than December
14, 2006, for the grant of service connection for tinnitus.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
Shauna M. Watkins, Law Clerk
INTRODUCTION
The Veteran had active service from August 1953 to June 1955.
This appeal to the Board of Veterans' Appeals (Board) is from
an August 2007 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In
that rating decision, the RO granted the Veteran's claim for
service connection for bilateral hearing loss, and assigned
an initial non-compensable (0 percent) rating for the
disability retroactively effective from December 14, 2006,
the date of receipt of the Veteran's claim. The RO also
granted the Veteran's claim for service connection for
tinnitus, and assigned an initial 10 percent rating for the
disability retroactively effective from December 14, 2006,
the date of receipt of the Veteran's claim. See Fenderson v.
West, 12 Vet. App. 119, 125-26 (1999) (indicating when this
occurs VA adjudicators must consider whether the Veteran's
rating should be "staged" to compensate him for times since
the effective date of his award when his disability may have
been more severe than at others). The Veteran appealed for
earlier effective dates for the grants of service connection
for bilateral hearing loss and tinnitus. He also appealed
for a higher initial rating for his service-connected
bilateral hearing loss.
Following the RO certification of this appeal to the Board in
March 2009, the Veteran submitted additional evidence.
However, he waived his right to have the RO initially
consider it. 38 C.F.R. §§ 20.800, 20.1304 (2009).
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The Board is remanding the claim of entitlement to a higher
initial rating for bilateral hearing loss to the RO via the
Appeals Management Center (AMC) in Washington, DC, for
further development and consideration.
FINDINGS OF FACT
1. The Veteran was separated from active service in June
1955; he did not raise a claim of entitlement to service
connection for any disability within one year of his
discharge from service.
2. In September 1982, the Veteran submitted an application
for benefits to the VA; he claimed entitlement to service
connection for bilateral hearing loss and tinnitus.
3. In an October 1982 rating decision, the RO denied the
Veteran's claims of entitlement to service connection for
bilateral hearing loss and tinnitus; the Veteran was notified
that same month, but did not appeal the decision.
4. On December 14, 2006, the Veteran submitted an
application to reopen his claims for entitlement to service
connection for bilateral hearing loss and tinnitus.
5. In an April 2007 rating decision, the RO denied the
Veteran's claims due to a lack of new and material evidence.
In May 2007, the Veteran filed a Notice of Disagreement (NOD)
in regards to this decision.
6. In an August 2007 rating decision, the RO granted the
Veteran's claim of entitlement to service connection for
bilateral hearing loss with an evaluation of 0 percent (non-
compensable), effective December 14, 2006, the date of the
Veteran's claim to reopen.
7. In an August 2007 rating decision, the RO granted the
Veteran's claim of entitlement to service connection for
tinnitus with an evaluation of 10 percent, effective December
14, 2006, the date of the Veteran's claim to reopen.
CONCLUSIONS OF LAW
1. The criteria for an effective date earlier than December
14, 2006 for the grant of service connection for bilateral
hearing loss have not been met. 38 U.S.C.A.
§ 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.155, 3.400
(2009).
2. The criteria for an effective date earlier than December
14, 2006 for the grant of service connection for tinnitus
have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.155, 3.400 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide. This
notice must be provided prior to an initial unfavorable
decision on a claim by the agency of original jurisdiction
(AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These
notice requirements apply to all five elements of a service
connection claim: veteran status, existence of a disability;
a connection between the veteran's service and the
disability; degree of disability; and the effective date of
the disability. See Dingess v. Nicholson, 19 Vet. App. 473
(2006).
Notice errors (either in timing or content) are presumed
prejudicial, but VA can proceed with adjudication if it can
show that the error did not affect the essential fairness of
the adjudication by showing: 1) that any defect was cured by
actual knowledge on the part of the veteran; 2) that a
reasonable person could be expected to understand from the
notice what was needed; or 3) that a benefit could not have
been awarded as a matter of law. Sanders v. Nicholson, 487
F.3d 881 (2007).
As to the issues of earlier effective dates for the service
connection claims on appeal in this case, the Board concludes
that to proceed to a decision on the merits would not be
prejudicial to the Veteran. As delineated below, the Board
finds that the Veteran's earlier effective date claims must
be denied as a matter of law. Therefore, there is no
reasonable possibility that further assistance would aid the
Veteran in substantiating his claims. Hence, no further
notice or assistance to the Veteran is required to fulfill
VA's duty to assist him in the development of the claims.
Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001).
The Merits of the Earlier Effective Date Claims
In September 1982, the Veteran submitted an application for
benefits to the VA; he claimed entitlement to service
connection for bilateral hearing loss and tinnitus. In an
October 1982 rating decision, the RO denied the Veteran's
claims of entitlement to service connection for bilateral
hearing loss and tinnitus. The Veteran was notified that
same month, but did not appeal the decision. The Veteran
asserts that his effective date should be from the date of
his September 1982 claim.
The assignment of effective dates of awards is generally
governed by 38 U.S.C.A.
§ 5110 and 38 C.F.R. § 3.400. Unless specifically provided
otherwise, the effective date of an award based on an
original claim for service connection or a claim reopened
after final adjudication "shall be fixed in accordance with
the facts found, but shall not be earlier than the date of
receipt of application therefor." 38 U.S.C.A. § 5110(a).
With a claim for service connection, the effective date of an
award will be (1) the day following separation from active
service or the date entitlement arose if the claim is
received within one year after separation from service or (2)
the date of receipt of claim or date entitlement arose,
whichever is later. 38 C.F.R.
§ 3.400(b)(2)(i).
If a claimant files an application for service connection
with VA, and the claim is disallowed, he has the right to
appeal that disallowance to the Board. See, e.g., 38
U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202,
20.302. If the claimant does not initiate an appeal within
one year, or if the claimant fails to perfect the appeal by
filing a timely substantive appeal, or if the claimant
initiates a timely appeal and the appeal is later withdrawn
or denied, the disallowance becomes final. See 38 C.F.R. §§
20.204, 20.302, 20.1100, 20.1103. Any award based on a
subsequently filed application for benefits can be made
effective no earlier than the date of the new application.
See 38 U.S.C.A. §§ 5110(a), (i), 5108; 38 C.F.R. §§ 3.156(c),
3.400(q), (r).
Review of the claims file reveals that the Veteran was
separated from active service in June 1955. There is no
evidence of record to indicate that the Veteran raised a
claim of entitlement to service connection for any disability
within one year of his discharge from service in 1955. In
September 1982, the Veteran submitted an application for
benefits to the VA; he claimed entitlement to service
connection for bilateral hearing loss and tinnitus.
In an October 1982 rating decision, the RO denied the
Veteran's claims of entitlement to service connection for
bilateral hearing loss and tinnitus. The Veteran was
notified that same month, but did not appeal the decision.
The Veteran had one year from the October 1982 notification
of the denial of service connection to initiate an appeal by
filing a NOD with the decision, and after the issuance of a
statement of the case (SOC), a substantive appeal. The
Veteran never filed an NOD. Thus, the decision became final
when an appeal was not initiated or perfected within the
allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38
C.F.R. §§ 3.160(d), 20.201, and 20.302(a).
On December 14, 2006, the Veteran again sought service
connection for bilateral hearing loss and tinnitus. However,
the RO denied the claim for lack of new and material evidence
in April 2007; the Veteran subsequently submitted a NOD in
that same month. In an August 2007 rating decision, the RO
granted the Veteran's claims of entitlement to service
connection for bilateral hearing loss and tinnitus and
assigned an effective date of December 14, 2006; the Veteran
was notified of the award the next month, and subsequently
submitted a NOD in October 2007.
The final decision of October 1982 can only be overcome by a
request for revision based on CUE, or by a request to reopen
the previously final decision based upon new and material
evidence. See 38 U.S.C.A. §§ 5108, 5109A (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.105(a), 3.156(a) (2009). However,
because the proper effective date for an award of service
connection based on a claim to reopen can be no earlier than
the date on which that claim was received, only a request for
revision premised on CUE can result in the assignment of an
effective date earlier than October of 1982. See 38 U.S.C.A.
§ 5110(a); 38 C.F.R. § 3.400(b)(2); Leonard v. Nicholson, 405
F.3d 1333 (2005).
As the Veteran's request for earlier effective dates for the
grants of service connection herein may not be reasonably
construed as claims based upon CUE in the October 1982 rating
decision, and as the RO has not developed the issue as such,
the Board finds no allegation of fact or law upon which
relief may be granted. To find otherwise, the Board would
err in entertaining an improper "claim" without imposing the
strictures of finality. There is also no record of any
communication from the Veteran dated since October 1982 that
could constitute an earlier unadjudicated claim for service
connection for hearing loss or tinnitus. Accordingly, the
Veteran's claims for earlier effective dates for the grants
of service connection for bilateral hearing loss and tinnitus
must be denied as legally insufficient. 38 U.S.C.A. §
7105(d)(5). Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(where the law and not the evidence is dispositive, the Board
should deny the claim on the ground of lack of legal merit).
ORDER
An effective date earlier than December 14, 2006 for the
grant of service connection for the bilateral hearing loss is
denied.
An effective date earlier than December 14, 2006 for the
grant of service connection for the tinnitus is denied.
REMAND
Regrettably, the Board must remand the claim for entitlement
to a higher initial rating for bilateral hearing loss for
further development and consideration. Although the Board
sincerely regrets this additional delay, it is necessary to
ensure there is a complete record upon which to decide this
claim so the Veteran is afforded every possible
consideration.
A review of the claims file shoes that the Veteran last had a
VA compensation and pension examination (C&P exam) for his
bilateral hearing loss in August 2007. And even then,
the examination was primarily for a medical nexus opinion
concerning the cause of his bilateral hearing loss - and in
particular, whether it is related to his military service.
But service connection since has been granted and the more
determinative issue now is the severity of the condition, no
longer its cause.
The Court has held that when a Veteran claims that a
disability is worse than when originally rated (or last
examined by VA), and the available evidence is too old to
adequately evaluate the current state of the condition, VA
must provide a new examination. See Olsen v. Principi, 3
Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2
Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet.
App. 377, 381 (1994) (where the Court determined the Board
should have ordered a contemporaneous examination of the
Veteran because a 23-month old examination was too remote in
time to adequately support the decision in an appeal for an
increased rating); see, too, Allday v. Brown, 7 Vet. App.
517, 526 (1995) (where the record does not adequately reveal
current state of claimant's disability, fulfillment of
statutory duty to assist requires a contemporaneous medical
examination, particularly if there is no additional medical
evidence that adequately addresses the level of impairment of
the disability since the previous examination). See also
VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski,
1 Vet. App. 121 (1991).
Therefore, the Board finds that the Veteran needs to be
reexamined to assess the severity of his hearing loss.
Moreover, in Martinak v. Nicholson, 21 Vet. App. 447, 455
(2007), the Court held that, relevant to VA audiological
examinations, in addition to dictating objective test
results, a VA audiologist must fully describe the functional
effects caused by a hearing disability in the final report of
the evaluation. At present there is no indication of the
functional effects the Veteran experiences as a result of his
bilateral hearing loss - including, for example, in his day-
to-day activity and civilian occupation.
Accordingly, this claim is REMANDED for the following
additional development and consideration:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited
handling is requested.)
1. Schedule the Veteran for another C&P
audiological examination to assess the
current severity of his bilateral
hearing loss.
Have the designated examiner review the
claims file, including a complete copy
of this remand, for the pertinent
medical and other history.
Appropriate testing, including a
controlled speech discrimination test
(Maryland CNC) and a puretone audiometry
test, should be conducted. The examiner
should then specifically report the
auditory thresholds in the applicable
frequencies.
In addition to objective test results,
the examiner should fully describe the
functional effects caused by the hearing
disability in the final report of the
evaluation, including specifically the
effect of the Veteran's hearing loss on
his ability to communicate via the
telephone and the impact of this on his
employability and civilian occupation.
In addition, the examiner should address
whether, and to what extent, the
Veteran's bilateral hearing loss
decreases his ability to communicate
effectively with other people. In
addressing the functional effects of the
hearing loss on the occupational
functioning generally, the examiner
should consider the Veteran's employment
history, educational background, and
day-to-day functioning in relation to
his bilateral hearing loss. In forming
the opinion, the examiner should
disregard both the age and any
nonservice-connected disabilities of the
Veteran. All opinions must be supported
by a clear rationale, if necessary with
citation to relevant medical findings.
2. Then readjudicate the Veteran's
claim in light of the additional
evidence. If the claim is not granted
to his satisfaction, send the Veteran
and his representative a supplemental
statement of the case (SSOC) and give
them an opportunity to respond to it
before returning the file to the Board
for further appellate consideration of
the claim.
The Veteran need take no action until he is so informed. He
has the right to submit additional evidence and argument
concerning the claim the Board has remanded to the RO via the
AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999).
The purposes of this remand are to obtain additional
information and comply with all due process considerations.
No inference should be drawn regarding the final disposition
of this claim as a result of this action.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs